Earlier today I wrote about the clear case of viewpoint discrimination by the student government at the University of California, Santa Barbara (UCSB), when it twice denied funding for a lecture tonight by conservative writer and speaker David Horowitz due to Horowitz’s viewpoints. In that post, I showed the strong evidence of viewpoint discrimination in the notes from the first meeting of the Associated Students Finance Board. (These notes show that they discussed their discriminatory plans during the meeting.)

In this post, I will discuss evidence from the Associated Students (AS) Legislative Council minutes of May 4, 2011, in which even more decisions were made to deny funding for the event due to Horowitz’s viewpoints. Discriminating on the basis of political views in student fee funding, which is what happened here on multiple occasions, violates the First Amendment.

After the Finance Board voted to give the UCSB College Republicans (CRs) nothing for the event, CRs President Steven Begakis took the case to the Legislative Council. The CRs requested $1,100 for security, $370 for audio visual services, and $300 for recording (a total of $1,770). Here’s what Finance Board Chair Katie Lieberknecht said during the Legislative Council meeting, according to the minutes:

[A]fter the board made their decision I was contacted by [AS Executive Director] Marisela [Marquez]. The rationale presented in the [Finance Board] minutes is a violation of University policy 86.30 in the Legal Code. UCSB Regent’s Lawyer brought this to our attention.

[…]

Joe Lee: So if we deny them funding whatsoever we’re open to a lawsuit, but can we deny them under the advisement to seek alternative funding?

Katie: You can, but that was not the rationale Finance Board gave. But I do want to encourage that this is beating around the bush, you need to take action tonight.

Here are some additional quotes from the debate, which was mostly about Horowitz’s viewpoints and expression. Few stood up for freedom of speech or equal treatment. The result was an allocation of $1,100. But then the Legislative Council (LC) "got yelled at" by the audience, some LC members claimed that they had not been paying attention, and LC ultimately re-voted, allocating only $800. What a great process–don’t you love student government?

The Failed Argument of ‘Incitement’

Common sense and experience dictate that Horowitz’s speech is extremely unlikely to incite members of the audience to become violent because they agree with the speech. Yet, some LC members tried to derail the speech on that ground:

Danielle Stevens: Is there a difference between freedom of speech and advocating hate speech?

Speaker: The definition of hate speech has to have a direct action against a group of people, groups that are routinely berated. There is a distinction and a person would need to prove that speech incites directs acts of hatred and violence.

Tiffany: Do you think the idea of free speech jeopardizes the safety of students on the campus?

Speaker: It may offend a minority of students on campus but it will not make them feel unsafe. Isn’t part of coming to this institution to be challenged by other views? If you go on people feeling comfortable and safe, it’s a personal opinion.

Speaker: Personally no. He is expressing his opinion but not saying to take action from that.

Marleen: Safety is a vehicle for freedom of speech. Do you think people will be so offended and uncomfortable it will lead them to become silent?

Speaker: No. We’re not asking the board to support the opinions, but give the time and opportunity to speak. Students will still have other outlets to express their views.

The Failed ‘I Feel Unsafe’ Argument

Some students appear to have learned that they only need to say, "I feel unsafe," and they can persuade the authorities to investigate, censor, or punish whatever expression that the students dislike. That appears to be what several students tried and failed to do here (see above and below). Here’s just one more example of the same attempt, which failed when the UCSB attorney simply asked the student to "Define unsafe?"

Katie: […] I told the lawyer I felt unsafe. The lawyer replied, "Define unsafe?" I don’t know how to define that.

The ‘Heckler’s Veto’

In fact, if anybody might become violent because of Horowitz’s speech, it is one or more of his critics. As one person named Ahmed said at the meeting:

Ahmed: If this is funded, whatever is incited from this is on the Council’ hands. Reads quote from David about what wearing a headscarf means. I don’t want to endanger students and I don’t want my student fees to fund that endangerment. There have been many things that have been against law and we may need to take a stance and be put on the line.

[…]

Rachel: We can tell by the atmosphere of this meeting we are going to need the security […]

But it is unconstitutional to lay the burden for others’ violent conduct at the hands of the controversial speaker. As FIRE’s letter to Chancellor Yang pointed out, such a "heckler’s veto" would mean that the most intolerant, violent people in the community get to decide which speech will take place on campus, simply by threatening violence and interfering with an event and causing the speaker to have to pay for security to keep the violent protesters under control.

The Unconstitutional ‘Sending a Message’ Argument

It should be clear that the diversity of viewpoints at UCSB means that getting funds from LC for an event has no necessary relationship to LC’s own viewpoints. The LC may not fund an event from the student activity fee because it likes some group’s message, or deny funding because LC dislikes the message. Yet, some wanted to deny funding because they didn’t want LC to send the message that Horowitz’s expression would be tolerated-which is pretty much the epitome of viewpoint discrimination:

Sophia and Noor: [emphasis in original]

This is not about freedom of speech; it’s about student fees. This is about the message Legislative Council will be sending to the student body and campus climate (video of David Horowitz speaking).

We want people to see how he treats people in open Q&A and how that violates others[‘] freedom of speech.

(The end of this quotation expresses yet another fallacy: it does not violate someone’s freedom of speech to cut them off or interrupt them while they are at a microphone during a Q&A. This event belongs to the CRs and David Horowitz, and is not a public forum that belongs to UCSB or the student government.)

Quoting from Horowitz’s Expressed Viewpoints

Some of the most blatant attempts to get the LC to deny funding for Horowitz came from reading Horowitz’s own words aloud during the meeting:

[Sophia and Noor?] Reading post from David Horowitz’s blog on "10 reasons why reparations are bad for blacks."

When we’re talking about freedom of speech and hate speech and the weight your words have, to say these words do not affect the campus community is ignorant. […] What are the implications to link MSU’s on campus and around the country to terrorist organizations?

[…]

Student Speaker: [emphasis in original]

When Jason made a comment about no group being directly targeted, did you hear this comment? (Plays comment by David Horowitz.)

Jason: May not have heard this particular one. (Read out-loud a quote from the last UCSB performance.)

Ahmed: This is about safety and this is an unsafe speaker. Last time there was a full-page ad describing MSA as a terrorist organization. Our experience with him on this campus is he wants to cause conflict and we believe AS monies should not fund this. Islamophobia had been on the rise and we don’t think it’s safe to talk about these issues and is promoting negative imagery about these groups. Hateful ads got printed in our newspaper and it’s making the Muslim community feel unsafe on campus and the utmost concern is student safety overriding freedom of speech. he has been banned on other campus, claiming MSU is a terrorist organization linked with Hamas and possibly linked to Al Qaeda. He attacked African American groups in 1999 and is more interested in promoting himself than free speech. It’s about what he’s inciting outside of his lectures and not accusing student organizations of terrorism.

More Speakers Focusing on Horowitz’s Protected Expression

Some student speakers expressed their view that LC shouldn’t fund the event because of Horowitz’s protected expression:

Student Speaker:

The problem with David Horowitz coming is that he incites hates. I don’t want to spend money for video, it’s all over the Internet just to bash people and he uses these speeches as a tool. I don’t see why student fees should go to filming.

[…]

Mariam – Student Speaker:

I am a board member of WComm. […] I also really do not want student fees supporting David Horowitz and his views. As a person’s who experienced discrimination, I do not want my student fees to promote a hateful message.

Student Speaker:

The gentleman from college republicans says it’s about free speech. But this doesn’t feel it’s an open exchange. I feel as a research institution our ideas should be based on facts and don’t want tuition fees to go toward generating hate toward a group of people. It’s beyond ideas.

Jared:

I want to congratulate College Republicans for making history, Action for Israel and MSU actually agree on something! I didn’t hear concrete evidence on anything when I went to the event 3 years ago; all I heard was slander.

[…]

Ahmed Mustafa:

I want to commend college republicans for coming in and fighting for what they believe in. I get judged by name all the time, and with the recent events of Osama being killed, I get looks directed toward me as if I’m associated with a person that spreads such hate. The issue is safety for me on this campus and I respect the students in College Republicans. It is hard to stand up especially as a marginalized individual. I feel like this speaker coming to campus, speaking just as a student, threatens my safety.

[…]

Chris Rod – Co-Chair for Black Quare:

[…] Also I’m against giving funding to David Horowitz not because I disagree with what he’s saying but don’t want other groups to feel like how I feel everyday as a marginalized individual on this campus. There is a constructive way to convey these ideas without marginalizing individuals.

Noor:

It doesn’t matter that David is a Zionist or a Republican, it’s about accusations and personal attacks that makes the Muslim community feel powerless.

[…]

Alfredo: […] Diversity, speech, and ideas I appreciate and like the different angles, and when speakers with different views come I think it’s constructive, but I believe the statements should be founded in fact and there’s a difference between that and completely outlandish statements. Referencing David Horowitz’s article on how the gay AIDS epidemic stems from the gay pride movement. If there were intelligent discourse with David, then great, but this is not the case. He will go on a rant about people that he doesn’t agree with or like. [Emphases in original.]

[…]

Fabian: My only reservation with bringing Horowitz is that it would be an educational event. David belittles students and professors and will only anger folks.

The Votes

By the end of the debate, $1,100 was allocated for the event by general consent. When the issue was reopened due to the reasons described above, 8 LC members voted "no," preventing the allocation:

Fabian Gallardo

Stanley Tzankov

Danielle Mayorga

Sarah Villardo

Briana Riley

Danielle Stevens (via proxy)

Alfredo Del Cid

Tiffany Mayville

Finally, LC voted 17-4-1 to allocate $800 for the event, if I follow the minutes correctly.

The Resolution

Later at the same meeting, another motion carried by consent:

A Resolution Recognizing that UCSB is a "UC Against Islamophobia" [emphasis in original]

If the Legislative Council wishes to make a statement against "Islamophobia," that is fine—but spending the earlier part of the meeting engaging in unconstitutional viewpoint discrimination against David Horowitz and the UCSB College Republicans is not a lawful way to do so.